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Anti-social Behaviour, Crime and Policing Bill

Volume 749: debated on Monday 25 November 2013

Committee (4th Day)

Relevant documents: 12th Report from the Delegated Powers Committee, 4th Report from the Joint Committee on Human Rights.

Clause 44: Remedial action by local authority

Amendment 22QG had been withdrawn from the Marshalled List.

Clause 44 agreed.

Clause 45: Offence of failing to comply with notice

Amendment 22QH not moved.

Clause 45 agreed.

Clause 46 agreed.

Clause 47: Forfeiture of item used in commission of offence

Amendment 22QJ not moved.

Amendments 22QK to 22QS had been withdrawn from the Marshalled List.

Clause 47 agreed.

Clause 48 agreed.

Clause 49: Fixed penalty notices

Amendment 22QT

Moved by

22QT: Clause 49, page 28, line 30, leave out “14” insert “28”

My Lords, I ask all noble Lords to leave the Chamber quietly out of respect for my noble friend Lady Hamwee.

My Lords, I hope that my amendments live up to that. I speak also to Amendments 22QU and 22QV, and Amendments 56ZBA and 56ZBB. These amendments are all about fixed-penalty notices for failure to comply, in the case of the first pair of amendments with a community protection order, and in the second pair of amendments with a public spaces protection order. The Bill allows 14 days to pay the fixed penalty, which may be reduced in amount it if is paid within a shorter period; I imagine that it is anticipated that that would be seven days. It seems to me that 14 days is a very short period. I am not in this amendment seeking to argue the merits or otherwise of either of the orders but we do not want them to come into disrepute through there being difficulties in their application. Some people go away on holidays, not realising that a notice may have become payable, because they might not actually have been handed it. There are a number of reasons why 14 days for payment is in many areas regarded as on the short side.

My amendments would provide in both cases a period of 28 days with a discount if payment is made, say, within 14 days—or, at any rate, an earlier period—which is comparable with penalties under the Road Traffic Offenders Act 1988. Amendment 22QV, also to Clause 49, would replace a certificate being one that,

“purports to be signed by or on behalf of the chief finance officer of the local authority”,

with one that is simply “signed on behalf of”. I will probably be told that this is language used in many other Acts of Parliament, but it seemed to me a curious provision. More importantly, however, there would be no scope for challenge to it if the local authority got its procedures wrong. I have therefore tabled the amendment not as a frivolous matter but as a serious one. I beg to move.

I thank my noble friend for explaining the purpose of these amendments. I suppose I could say that I had a vested interest in asking other noble Lords to leave quietly, as I had to respond to this amendment.

This amendment relates to the amount of time that an individual issued with a fixed penalty notice should be given to pay. Where breach of a community protection notice or of a condition of a public spaces protection order has occurred, the offender could be issued with a fixed penalty notice. Payment of this penalty notice discharges the perpetrator from any other proceedings for that breach and so they are, quite rightly, given a period of grace in which to pay the amount specified. Different fixed penalty notice schemes have different periods during which recipients are expected to pay the penalty; for example, littering is set at 14 days whereas others have a longer time. In this case we believe that 14 days is sufficient time for a perpetrator to pay that amount and that it provides the right balance between giving the offender enough time to pay the fine and ensuring that the process for collecting such money is both timely and efficient.

In terms of Amendment 22QV, I have listened to the case made by my noble friend, who highlighted certain instances of concern. However, the language used in the Bill is, of course, commonly used elsewhere on the statute book. For example, this terminology is also used in the Environmental Protection Act 1990 in relation to fixed penalty notices under that Act. In effect it avoids the chief finance officer having to come to court to give evidence personally that he or she had signed the certificate. Despite that provision, it remains a matter for the court to decide what weight to place upon the document as evidence, although in practice it is highly unlikely that whether the document is genuine will ever be an issue. I have heard the case that my noble friend has made, but the Government feel that on balance the 14 days and, as has been stated, the signature of the chief finance officer as stands in what the Government have tabled is the right way forward. For those reasons, I hope that my noble friend is minded to withdraw her amendments.

My Lords, of course I will withdraw them, given that this is Committee stage. The last of my amendments would not impose any requirement to give evidence any more than would the words in the Bill, but I can see that I will not get anywhere with that. On the 14 days, is it just a question of the Government saying, “We think this is right”, or is it something more detailed than that? We have different views. I have said that I am concerned that the timing may too easily be missed, and that it could bring the penalties regime into disrepute. If the noble Lord has any more to say in support, I would be glad to hear it. Will he tell the Committee whether the shorter period envisaged is indeed seven days, which I rather guessed at? I do not know whether his notes give him that information.

It would be appropriate if I wrote to the noble Baroness; I will come back to her specifically on whether it is seven or 10 days. However, on the 14 days, that is the Government’s position as it stands.

Amendment 22QT withdrawn.

Amendments 22QU and 22QV not moved.

Clause 49 agreed.

Clause 50: Authorised persons

Amendment 22QW

Moved by

22QW: Clause 50, page 29, line 21, leave out paragraph (c)

My Lords, I will speak also to Amendments 22QYB, 22QYC and 22QYD.

Clause 50 states who may issue a community protection notice or a fixed penalty notice. Amendment 22QW queries whether paragraph (c) of Clause 50(1) is necessary. It provides that a community protection notice or fixed penalty notice may be issued by,

“a person designated by the relevant local authority”.

Paragraph (b) refers to the notices being issued by, “the relevant local authority”. The authority will have to designate a signatory because whatever it does must be done by someone acting in its name. Therefore, I am puzzled as to what paragraph (c) adds.

I have added my name to Amendment 22QY standing in the name of my noble friend Lord Greaves—he got there first—because my real objection concerns subsection (4) of Clause 50, which provides that only someone in a post,

“specified in an order made by the Secretary of State”,

can be designated. Surely, designation must be a matter for the local authority. Does the Secretary of State have to intervene at this level?

Amendments 22QYB and 22QYC probe whether all police community support officers have the relevant technical knowledge to deal with community protection notices. On previous Committee days we discussed some of the difficulties that may arise in using the existing statutory powers that environmental health officers have, for example, as opposed to using the new mechanisms provided in the Bill. A lot of technical knowledge needs to be applied in deciding whether an infringement has occurred, especially in respect of noise.

My last amendment in this group concerns serving a notice. A fixed penalty notice can be handed over to the individual or be delivered to that person’s address either by hand or by post. If it is to be delivered by post, I am concerned to know when it is deemed to have been issued. If it is issued when the notice is put in the post, it will reduce, by at least a day and possibly more, the time that the recipient of the notice has to pay. I have already said that I am concerned about how short that time is. I beg to move Amendment 22QW.

My Lords, the point I am about to make has been made in connection with a great deal of other legislation and concerns the abilities of those with learning difficulties and disabilities to understand the content and implications of notices such as those we are discussing. It is important to ensure that the legislation includes reference to the provision of appropriate adults or advocates or whatever sources are used to make certain that the full implications are explained to those who may have such difficulties to avoid them getting into yet further trouble, completely inappropriately.

My Lords, I have three amendments in this group, which have to some extent been covered already by my noble friend Lady Hamwee. Clause 50 states that authorised persons who may issue a community protection notice or a fixed penalty notice are “a constable” or “the relevant local authority”—a lower-tier district or unitary authority in this case—or,

“a person designated by the relevant local authority”.

These amendments largely probe the intentions of the Government as to which persons might be designated by the relevant authority.

Subsection (4) states:

“Only a person of a description specified in an order made by the Secretary of State … may be designated”.

Along with my noble friend, I wonder why the Secretary of State requires this power in this instance. By and large, all the anti-social behaviour parts of the Bill are remarkably free of powers under which the Secretary of State can issue orders and regulations. Those of us who ploughed through Bills such as the Localism Bill and the Growth and Infrastructure Bill, now Acts of Parliament, felt that they were plagued with powers under which the Secretary of State could tell local authorities in great detail what to do through statutory instruments. This Bill is mercifully free of such provisions, except here and there. Yet here, for some reason, one such provision crops up, and it is not clear why it should be required in this instance.

I therefore tabled Amendment 22QY only to probe the Government’s intention regarding what class of people ought to be involved. However, we want to take out the ability of the Government to instruct local authorities. Specifically, Amendment 22QX probes the question of whether a parish council—or perhaps a larger parish or town council—could be designated by the relevant local authority, the district council, to carry out some of these functions. I should make it clear that if the amendment were agreed it would be entirely permissive and would require the agreement of both the district and the town or parish council. However, town councils and some parish councils already do a huge amount of work on tackling local issues such as litter. It seems sensible, at least in a restricted way when dealing with appropriate issues, for those councils to have powers to serve community protection notices.

My question is: as the Bill stands, would parish councils, or perhaps a specified person on or employed by a parish council, be eligible for designation? Is it the Government’s intention that if they are going to designate such people, parish councils would be available to be designated if they wished to do this work? Clearly, there would be no question of compulsion.

My Lords, as this is the first occasion on which I have spoken at this stage of the Bill, I ought to reiterate my declaration of interests as a vice-president of the Local Government Association and president of the National Association of Local Councils, the parent body of parish and town councils.

I will direct my attention to Amendment 22QX in the name of the noble Lord, Lord Greaves. I am extremely grateful to him for raising this point because it is perfectly true that many parish and town councils across England and Wales have aspirations to take on addition roles. He will be aware from a note that I sent him and copied to the Minister that I was a bit doubtful as to whether a generic provision for parish councils to be designated in this way was necessarily wise or appropriate, because it will be clear to Members of this Committee that parish councils, by their very nature, come in all shapes and sizes and with all manner of abilities and resources available to them—from next to nothing to those that would put some principal authorities in the shade. Therefore, it is very important to understand the criteria whereby such a designation could be made. Otherwise, were a parish or town council to be so designated in a situation where ultimately it could not manage this particular obligation, it would potentially be a hostage to the fortunes of circumstance.

I should add that I inquired of a number of other bodies, such as the Ramblers and the Open Spaces Society, what they felt about the business of parish and town councils having this sort of power. I did not refer specifically to this type of power but to more general powers, but they were doubtful that it would be appropriate. They may have had their own reasons for being doubtful, and of course noble Lords will have their own take on this; none the less, it should be clear—and I hope that the Minister will clarify—that what is intended here is that designation will occur when there is clearly the desire and the capacity—in other words, a two-way street of designation, as the noble Lord, Lord Greaves, outlined. I hope that this is essentially understood on all sides of the Committee that that is a necessary ingredient.

Does the noble Earl agree that the concerns about the Bill from the Open Spaces Society, the Ramblers and such organisations really refer to the next chapter of the Bill on public spaces protection orders rather than CPNs? He may be interested to know that only this morning I discussed this matter in some detail with the National Association of Local Councils. On the basis that it will be a two-way voluntary agreement, the association can see a great deal of justification for parish and town councils taking part in this.

My Lords, the noble Lord is well ahead of the curve on this. I tried to contact the National Association of Local Councils without success earlier today, so he has stolen a march on me. I am extremely glad about that, because one of the great merits of this House is the collaborative way in which these things are dealt with. I am particularly glad that he has made contact with the association and that he has that very common-sense steer on the matter.

With regard to the Open Spaces Society, the Ramblers and such organisations, I entirely take his point that the issue is probably more specific to the next chapter of the Bill. However, their concerns underline that there will be doubts about the capacity of parish and town councils to undertake certain things and about whether that is an appropriate level at which to deal with the issue. Whether the Minister feels that it is appropriate to accept this amendment or whether he will suggest that there is another way in which the Government’s thinking caters for it, I will leave to his response.

My Lords, these amendments raise a number of interesting points. Amendments 22QW and 22QY relate to the provisions in the Bill which would allow local authorities to designate others with the ability to use the new community protection notice. The aim behind this provision is to ensure that the burden of dealing with certain types of anti-social behaviour does not fall on just one agency.

However, it is important that we strike a balance between the new flexibility and the fact that this new notice incurs a criminal sanction on breach. While subsection (1)(c) allows for the local authority to designate the power, as a safeguard subsection (4) allows the Secretary of State to say who this may include. As we have made clear over the past few years, we believe that social landlords should have a role in dealing with this type of anti-social behaviour. At present, they are the only group that would be included in the order. With regard to who else is going to be on the Home Secretary’s list, at present social landlords are the only category of person but, over time, other groups or bodies may express an interest and we will consider them on a case-by-case basis.

The draft guidance makes clear the importance of partnership working, and ultimately the local authority will be able to set the ground rules if it decides to give a social landlord access to the new power. However, as many of those landlords are already dealing with these issues and making judgment calls daily on what is reasonable or not, it seems sensible to give them a formal role in their own communities. I hope that I have explained the need for other bodies to have access to the new notice and for the safeguards and reasoning behind those safeguards to have been included. I hope that my noble friend will not press the amendments.

Amendment 22QX would add parish councils and Welsh community councils to the list of bodies that can be designated by the relevant local authority to issue CPNs. CPNs are a powerful tool and, as such, there needs to be some control over the number of organisations that can issue them in order to maintain consistency. As I said, a breach of a CPN is a criminal offence and one needs experienced practitioners in their use. We believe that local authorities, as defined in Clause 53, are the right bodies to undertake this role. As with public spaces protection orders, we do not believe that parish councils should be able to hear them. However, I have been interested in the debate that has gone on between the noble Earl, Lord Lytton, and my noble friend Lord Greaves on this issue. If we are to extend the role to include parish councils, we need evidence to effect such a change, and we would need to be absolutely certain that it was in the best interests of making effective use of these new powers.

Amendment 22QYA would allow the local authority to restrict the use of community protection notices where it designates the power to another person or body. I am happy to reassure my noble friend that this is already possible as the provisions are drafted, and we shall seek further to clarify that in the guidance. We would expect that, in designating the power to social landlords, local authorities would use a memorandum of understanding to agree boundaries on the use of the notice and local guidelines on matters such as the enforcement of notices and the recording of data on their use.

I understand the point raised by my noble friend on Amendments 22QYB and 22QYC relating to the level of training that those issuing the notice will receive, including police community support officers. I have made it clear that this is a highly responsible activity and that training is important. I assure my noble friend that the kind of judgment calls being made here, and being made daily by social landlords, PCSOs, council staff and police officers, are a feature of current implementation of anti-social behaviour measures. What is unreasonable is how behaviour affects victims and communities and when it is right to go down the formal intervention route. However, we would expect there to be training on the new powers and the impact assessments that we have published include the cost of training. That covers the police, including all PCSOs, social landlords and local authority staff. It is not for Ministers in Whitehall—this is a theme going through the whole Bill—to mandate what levels of training are required to deal with local issues. As such I cannot guarantee exactly what training officers will receive, but I expect that police forces, social landlords and local authorities will see the benefits of the effective use of this new power and train their staff accordingly. I hope that I have given my noble friend the assurances she needs to withdraw her amendment.

I was interested in the contribution of the noble Lord, Lord Ramsbotham, who asked to be reassured that learning disabilities would be considered in the enforcement of this part of the Bill and indeed other parts, too, We can make that absolutely clear in guidance. It is good practice in any event, but I will look at ways of trying to make it clear in the guidance that we issue.

I turn now to the service of documents by post. This is governed by Section 7 of the Interpretation Act 1978. Under this, service is deemed to have been effected when the letter is posted but actually effected at the time the letter would have been received in the ordinary course of post unless the contrary is proven. There is allowance for the time of delivery under normal events but, should that notice not be received within a reasonable time to enable the person to effect the action that is required, they are required to put forward evidence of not having received the notice. As my noble friend will know, many notices of this type are sent by tracker post or recorded delivery of some description so that the service of the notice can be noted by the issuing authority.

I hope that I have given assurances on these matters and that, on that basis, my noble friend will withdraw her amendment.

Did I hear my noble friend correctly? Did he say that people have to produce evidence of not having received documents? I do not see how they could do so.

I am quoting from the information I have received, which is the interpretation of Section 7 of the Interpretation Act 1978. When I received it, it sounded slightly topsy-turvy, but nevertheless this has been in use for some time and I expect that there are precedents for the use of this Act. As I say, my noble friend can be reassured that the majority of notices of this type are served either by a visit or by recorded delivery. I shall seek to elaborate further on this and write to my noble friend.

My Lords, on behalf of parish and town councils I thank the Minister for his slightly helpful comments at the end of his remarks. Perhaps, before the Bill is implemented, the noble Earl, Lord Lytton, and I and the NALC might get together to see whether we can put forward a clear, evidence-based proposal to the Government which they might consider seriously.

I thank the Minister for his helpful reply to my Amendment 22QYA, which I had forgotten to speak to.

My Lords, last week I, too, had a long reply to an amendment to which I had not spoken. Perhaps that is the way to go.

On the last of my amendments on the power to issue CPOs, I asked whether everyone falling within the description of what will be the new paragraph 1ZB in the schedule to the Police Reform Act would have the power. I think that the Minister is saying that everyone who falls within that description will have the power and not only particular individuals who have received training. Am I right in understanding that?

There may be certain circumstances in which people are specifically trained for this function; there may be others where the work they undertake would include training in this function; and there may be others who operate under the guidance of other individuals who have been trained as to how it should be effectively done. It will depend on the circumstances.

No authority acting under this provision will wish to make a mistake. They will want to do it properly because it is in their interests that the CPN should be enforceable.

It shows how naive I am, but I have to say that it simply had not occurred to me that the designation under subsection (1)(c) would be of an organisation which is not a public body in the way that we would normally understand it, such as a local authority. As the Minister says, the notice is very powerful and there are criminal consequences. I would certainly like to think about that a little more but of course, for the moment, I beg leave to withdraw the amendment.

Amendment 22QW withdrawn.

Amendments 22QX to 22QYC not moved.

Clause 50 agreed.

Clause 51 agreed.

Clause 52: Issuing of notices

Amendment 22QYD not moved.

Clause 52 agreed.

Clauses 53 and 54 agreed.

House resumed.